Tuesday, September 11, 2018

In Brady v. Bayer Corp., ___ Cal.App.5th ___ (Sept. 7, 2018), the Court of Appeal (Fourth Appellate District, Division Three) held that the plaintiff's complaint adequately alleged that the defendant's product label was misleading to a reasonable consumer under both the CLRA and the UCL.

The front of the label called the product "One A Day" multivitamin gummies, but you had to read the back of the label to find out that you're supposed to take two gummies per day to get the recommended daily nutritional value. The opinion includes images of the front and back of the product label.

Tuesday, August 07, 2018

In Hansen v. Newegg.com Americas, Inc., ___ Cal.App.4th ___ (July 31, 2018), the Court of Appeal (Second Appellate District, Division Seven) addressed UCL and FAL standing in a case involving false advertising of a product's former price (or the amount by which the product price had been reduced or discounted).

Applying Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (2011) (discussed in this blog post), the Court determined that the plaintiff satisfied the UCL and FAL's standing requirements by alleging that if the former price had not been misrepresented, he would not have purchased the product. He need not also allege that the product was not worth what he paid for it (a "benefit of the bargain" theory of standing advanced by the defendant). Slip op. at 10-21.

The panel also held that the reasoning of two 2008 opinions--Hall v. Time, Inc., 158 Cal.App.4th 847 (2008) and Petersen v. Cellco Partnership, 164 Cal.App.4th 1583 (2008) (discussed in these blogposts)--had been superseded by Kwikset:

These cases, however, were decided before Kwikset, which held that the “benefit of the bargain” theory has no relevance when the misrepresentation underlying the UCL claim is material in nature.(See Kwikset, 51 Cal.4th at pp. 332-333; see also Hinojos, supra, 718 F.3d at p. 1107 [“‘benefit of the bargain’ rationale was explicitly rejected in Kwikset” for UCL claims that allege a material misrepresentation].)

Slip op. at 21. When it comes to former price, "'reasonable people can and do attach importance'" to it "'in their purchasing decisions.'" Id. at 19-20 (quoting Kwikset, 51 Cal.4th at 333). "[E]mpirical research" shows that "the presence of a higher original price affects consumers' perceptions 'about the product's worth,' and increases their willingness to buy the product." Id. at 20 (quoting Hinojos, 718 F.3d at 1106).

Tuesday, July 31, 2018

Last week, the Supreme Court held that in California, employers must pay for "any" and "all" time their employees work, and they cannot escape this obligation by claiming that the time is "de minimis." Troester v. Starbucks Corp., ___ Cal.5th ___ (July 26, 2018). (Scott Leviant has more on the wage and hour aspects of the decision. Copies of the briefs, including the amicus brief I co-wrote with Ari Stiller for CAOC and CELA, are available here.)

In the 1940s, the U.S. Supreme Court suggested that a "de minimis" defense to FLSA wage claims might exist under federal law, but 70 years later, the California Supreme Court found the reasoning behind those comments outdated. For one thing, the 1960s saw the advent of the class action:

Two additional considerations reinforce our reluctance to fully adopt Anderson's reasoning as a matter of state law. First, the modern availability of class action lawsuits undermines to some extent the rationale behind a de minimis rule with respect to wage and hour actions. The very premise of such suits is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy. As we explained in Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, a class action suit involving a 4 cents per gallon surcharge on gasoline customers using credit cards: “Setting aside the fact that class members who were repeat customers might be entitled to recover far more than the minimal 80-cent damage figure noted by the trial court, it is firmly established that the benefits of certification are not measured by reference to individual recoveries alone. Not only do class actions offer consumers a means of recovery for modest individual damages, but such actions often produce ‘several salutary by-products, including a therapeutic effect upon those sellers who indulge in fraudulent practices, aid to legitimate business enterprises by curtailing illegitimate competition, and avoidance to the judicial process of the burden of multiple litigation involving identical claims.’ ” (Id. at p. 445.) As one Court of Appeal observed in a case involving alleged fraudulent practices against consumers, “[i]n this age of the consumer class action this maxim [de minimis non curat lex] usually has little value.” (Harris v. Time, Inc. (1987) 191 Cal.App.3d 449, 458.) The same is true of employee class actions.

Slip op. at 17-18 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)). For another, timekeeping technology is far more advanced now than it was in the 1940s:

Second, many of the problems in recording employee work time discussed in Anderson 70 years ago, when time was often kept by punching a clock, may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices. We are reluctant to adopt a rule purportedly grounded in “the realities of the industrial world” (Anderson, supra, 328 U.S. at p. 692) when those realities have been materially altered in subsequent decades.

Id. at 18. And what some employers might want to call "de minimis" is really not for many workers:

An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine. As the facts here demonstrate, a few extra minutes of work each day can add up. According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $102.67 at a wage of $8 per hour. That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.

According to this article in The Recorder (subscription), the matter will be set for oral argument during the week of September 24, 2018 in Pasadena, California.

I recently had the privilege of presenting oral argument in the Ninth Circuit's courthouse in Pasadena. It is a lovely building and location. It was one of the last arguments heard by the late, great Judge Stephen Reinhardt, having taken place about three weeks before he died. I was very saddened to hear about his passing so soon after I had argued before him.

The Ninth Circuit's opinion, which was a win for us, was handed down just a few days before his death. When the defendant sought rehearing, Judge Wardlaw was assigned to the case in Judge Reinhardt's place, but he signed the original opinion, which turned out to be one of his last. SeeRobinson v. OnStar, LLC, 721 Fed. Appx. 704 (9th Cir. 2018) (modified opinion reversing district court's order compelling individual arbitration).

I'm particularly pleased by this result. This one was a challenge, given the published opinion and what, at first glance, might look like a split in authority between intermediate appellate decisions. I worked hard to craft a series of compelling reasons for denying review, and I'm very happy that the Supreme Court seems to have found them persuasive.

The denial of review sends a strong signal that the Court of Appeal correctly decided the case and properly construed the Supreme Court’s Unruh Act precedents. The Court of Appeal's published opinion is Candelore v. Tinder, Inc., 19 Cal.App.5th 1138 (2018).

Thursday, May 10, 2018

In Sali v. Corona Regional Medical Center, ___ F.3d ___ (9th Cir. May 3, 2018), the district court denied class certification because (among other reasons) the plaintiffs' evidence of adequacy and typicality was not admissible. The Ninth Circuit reversed, holding that admissible evidence is not required at the class certification stage:

Because a class certification decision “is far from a conclusive judgment on the merits of the case, it is ‘of necessity . . . not accompanied by the traditional rules and procedure applicable to civil trials.’” [In re] Zurn Pex [Plumbing Prod. Liab. Litig.], 644 F.3d [604,] 613 [(8th Cir. 2011)] (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974)). Notably, the evidence needed to prove a class’s case often lies in a defendant’s possession and may be obtained only through discovery. Limiting class-certification-stage proof to admissible evidence risks terminating actions before a putative class may gather crucial admissible evidence. And transforming a preliminary stage into an evidentiary shooting match inhibits an early determination of the best manner to conduct the action.

It follows that we have found an abuse of discretion where a “district court limited its analysis of whether” class plaintiffs satisfied a Rule 23 requirement “to a determination of whether Plaintiffs’ evidence on that point was admissible.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). Although we have not squarely addressed the nature of the “evidentiary proof” a plaintiff must submit in support of class certification, we now hold that such proof need not be admissible evidence.

Inadmissibility alone is not a proper basis to reject evidence submitted in support of class certification. “Neither the possibility that a plaintiff will be unable to prove his allegations, nor the possibility that the later course of the suit might unforeseeably prove the original decision to certify the class wrong, is a basis for declining to certify a class which apparently satisfies” Rule 23. Blackie v. Barrack, 524 F.2d 891, 901 (9th Cir. 1975). Therefore, in evaluating a motion for class certification, a district court need only consider “material sufficient to form a reasonable judgment on each [Rule 23(a)] requirement.” Id. The court’s consideration should not be limited to only admissible evidence.

Tuesday, May 01, 2018

In Dynamex Operations West, Inc. v. Superior Court (Lee), ___ Cal.5th ___ (Apr. 30, 2018), the Supreme Court determined that the trial court correctly granted class certification of certain wage and hour claims, all of which were based on the theory that the defendant had misclassified the plaintiffs as independent contractors instead of employees. (My post on the Court of Appeal's opinion in this case is here.)

Those who handle wage and hour matters will be very interested in the Court's lengthy discussion of the test for determining whether a worker is an employee or an independent contractor for purposes of the obligations imposed by the Wage Orders. Slip op at. 22-77.

In brief summary, the Wage Orders set forth "three alternative definitions of employment": "'(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.'" Slip op. at 40 (quoting Martinez v. Combs, 49 Cal.4th 35, 64 (2010)) (emphasis in original).

The parties disagreed on whether definitions (a) or (b) should apply for purposes of determining whether an employer-employee relationship exists (as opposed to other purposes, such as whether a joint employer relationship exists). Id. at 46. The defendant argued that only definition (c), the common-law test, should apply. See id.

The Supreme Court determined that it need not decide whether definition (a) applied, because it held that definition (b) did, and under that definition, the claims were properly certified for class treatment. Id. at 46-47, 78-81.

Construing definition (b), the Court held that whether a hiring business "employed" a worker within the meaning of the "suffer or permit to work" standard should be determined using what has come to be known as the "ABC test." Id. at 64-77. The Court explained:

The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity’s business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Id. at 64.

The Court adopted the ABC test, in part, because it was a "simpler, more structured test for distinguishing between employers and independent contractors" (that is, it was simpler than the "multifactor, all the circumstances" standard advocated by the employer) and because it "does not purport to render every individual worker an employee rather than an independent contractor." Id. at 61, 64, 66. Instead, the ABC test maintains a clear distinction between: (1) employees for whose protection the Wage Orders were adopted; and (2) "traditional independent contractors ..., like independent plumbers and electricians, who could not reasonably have been intended by the wage order to be treated as employees of the hiring business." Id. at 54; see also id. at 7 ("individual workers, like independent plumbers or electricians, who have traditionally been viewed as genuine independent contracts who are working only in their own independent business" (emphasis in original)).

Turning to class certification, the Court concluded that "the trial court's view of the suffer or permit to work standard was too broad." Id. at 78-79. Nevertheless, class certification was properly granted, because "under a proper interpretation of the suffer or permit to work standard, the trial court’s ultimate determination that there is a sufficient commonality of interest to support certification of the proposed class is correct and should be upheld." Id. at 79.

Skipping part A of the ABC test, the Court found a "sufficient commonality of interest within the certified class" on whether part B of the test was met, which, the Court held, was sufficient to uphold the order granting class certification:

Because each part of the ABC test may be independently determinative of the employee or independent contractor question, our conclusion that there is a sufficient commonality of interest under part B of the ABC test is sufficient in itself to support the trial court’s class certification order. (See Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at p. 1032 [class certification is not an abuse of discretion if certification is proper under any theory].)

Id. at 80. For purposes of providing "guidance" on remand and for other actions, the Court turned to part C of the ABC test, and found a "sufficient commonality of interest" on that part, too. Id. at 80-81. The final paragraph of the Court's analysis reads:

For the foregoing reasons, we conclude that under a proper understanding of the suffer or permit to work standard there is, as a matter of law, a sufficient commonality of interest within the certified class to permit the question whether such drivers are employees or independent contractors for purposes of the wage order to be litigated on a class basis. Accordingly, we conclude that with respect to the causes of action that are based on alleged violations of the obligations imposed by the wage order, the trial court did not abuse its discretion in certifying the class and in denying Dynamex’s motion to decertify the class.

Id. at 81.

For those of us who are more concerned with the class certification aspects of the case, the following footnote from earlier in the opinion will be of interest:

A trial court order denying a motion to decertify a class is generally subject to review pursuant to an abuse of discretion standard. (See, e.g., Duran v. U.S. Bank Nat. Assn. (2014) 59 Cal.4th 1, 49; Sav-on Drug Stores, Inc. v . Superior Court (2004) 34 Cal.4th 319, 326; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436.) The question of what legal standard or test applies in determining whether a worker is an employee or, instead, an independent contractor for purposes of the obligations imposed by a wage order is, however, a question of law (cf., e.g., Martinez, supra, 49 Cal.4th at pp. 57-60 ), and if the trial court applied the wrong legal standard and that error affected the propriety of its class certification ruling, the order denying decertification would constitute an abuse of discretion. (See, e.g., Duran v. U.S. Bank Nat. Assn., supra, 59 Cal.4th at p. 49.)

Id. at 45 n. 16 (emphasis added). This passage, and its reliance on Brinker, are also of interest:

For the reasons discussed below, we conclude that there is no need in this case to determine whether the exercise [of] control over wages, hours or working conditions definition [i.e., the first definition of "employ" from Martinez] is intended to apply outside the joint employer context, because we conclude that the suffer or permit to work standard [i.e., the second definition from Martinez] properly applies to the question whether a worker should be considered an employee or, instead, an independent contractor, and that under the suffer or permit to work standard, the trial court class certification order at issue here should be upheld. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1032 [when plaintiffs in a class action rely on multiple legal theories, a trial court’s certification of a class is not an abuse of discretion if certification is proper under any of the theories].)

In Google Referrer, Ninth Circuit affirmed the district court's order approving a class action settlement in which all monetary proceeds were distributed to cy pres recipients, reasoning that distributions to individual class members were not economically feasible. 869 F.3d at 741-42.

Monday, April 09, 2018

This article includes links to some of the briefs filed in connection with the rehearing petitions in the Hyundai case (discussed here).

According to the article, both the plaintiffs and the defendants have petitioned for rehearing, leaving the objectors to attempt to defend the decision. SeeIn re Hyundai and Kia Fuel Economy Litigation, ___ F.3d ___ (9th Cir. Jan. 23, 2018).

Wednesday, March 14, 2018

Many thanks to the blog reader who pointed out that in December of last year, the U.S. Supreme Court granted cert. in China Agritech, Inc. v. Resh, No. 17-432, a securities class action involving American Pipe tolling. Reuters had an interesting article about the case shortly after the grant. SCOTUSblog's case page has links to all the briefs, including numerous amicus briefs.

In May 2017, the Ninth Circuit handed down its opinion in Resh v. China Agritech, Inc., 857 F.3d 994 (9th Cir. 2017). The parties did not dispute that the American Pipe rule tolled the running of the statute of limitations for all unnamed plaintiffs in two prior class actions, or that after class certification was denied in those earlier cases, the unnamed plaintiffs could file new individual lawsuits. The question was whether they could commence new putative class actions. See id. at 1000. The Ninth Circuit held that while principles of comity or issue preclusion might apply in such a subsequent case, the proposed class claims were not time-barred. Id. at 1004.

The following passage explains the panel's reasoning:

We conclude, based on American Pipe and Crown, Cork & Seal, read in the light of Shady Grove, Smith and Tyson Foods, that permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling would advance the policy objectives that led the Supreme Court to permit tolling in the first place. The rule creates no unfair surprise to defendants because the pendency of a prior class suit has already alerted them "not only [to] the substantive claims being brought against them, but also [to] the number and generic identities of the potential plaintiffs who may participate in the judgment." American Pipe, 414 U.S. at 554-55. The rule also promotes economy of litigation by reducing incentives for filing duplicative, protective class actions because "[a] putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations." Crown, Cork & Seal, 462 U.S. at 350-51.

We further conclude, based on Smith, that to the degree that our conclusion may be thought likely to lead to abusive filing of repetitive class actions, the current legal system is adequate to respond to such a concern. First, if it is clear that a proposed class is not viable under Rule 23, as evidenced by an earlier federal court decision, potential future plaintiffs (or, more precisely, their attorneys) will have little to gain from repeatedly filing new suits. Attorneys who are going to be paid on a contingency fee basis, or in some cases based on a fee-shifting statute, at some point will be unwilling to assume the financial risk in bringing successive suits. Second, ordinary principles of preclusion and comity will further reduce incentives to relitigate frivolous or already dismissed class claims, and will provide a ready basis for successor federal district courts to deny class action certification.

Tuesday, March 13, 2018

Neither of these recent cases is a UCL or a class action matter, but I can't resist sharing them. Here is the Fourth Appellate District, Division Three, in an opinion handed down last week:

“O thou invisible spirit of wine, if thou hast no name to be known by, let us call thee devil!” (Shakespeare, Othello, act II, scene 3.)

Yea verily, we are presented with a most unfortunate tale of a villainous wine dealer who sold millions of dollars’ worth of counterfeit wine to an unsuspecting wine collector. When the wine collector discovered the fraud, he filed an insurance claim based on his “Valuable Possessions” property insurance policy. The insurance company denied the claim. The wine collector sued for breach of contract. The trial court ruled in favor of the insurance company, sustaining its demurrer.

We agreeth with the trial court; the wine collector suffered a financial loss, but there was no loss to property that was covered by the property insurance policy. In other words, the wine collector is stuck with the devil wine without recompense. A Shakespearean tragedy, to be sure.

....

Finally, we can merely offereth to Doyle this small piece of wisdom from the Bard of Avon: “The robbed that smiles steals something from the thief.” (Shakespeare, Othello, act I, scene 3.)

Doyle v. Fireman's Fund Ins. Co., ___ Cal.App.5th ___ (Mar. 7, 2018) (slip op. at 2, 8) (emphasis in original). Somehow I doubt Doyle feels very consoled by that. On the other hand, he does have standing to assert a UCL claim against the fraudster:

Simply stated: labels matter. The marketing industry is based on the premise that labels matter — that consumers will choose one product over another similar product based on its label and various tangible and intangible qualities they may come to associate with a particular source. .... Whether a wine is from a particular locale may matter to the oenophile who values subtle regional differences. ....

.... Two wines might to almost any palate taste indistinguishable — but to serious oenophiles, the difference between one year and the next, between grapes from one valley and another nearby, might be sufficient to carry with it real economic differences in how much they would pay.

Kwikset Corp. v. Superior Court (Benson), 51 Cal.4th 310, 329, 330 (2011). The fraudster in Doyle "for many years ... had apparently been filling empty wine bottles with his own wine blend and had been affixing counterfeit labels to the bottles." In other words, the case presents a textbook "fraudulent" prong claim.

Back to Shakespeare. Here is Justice Cuéllar, writing for the Supreme Court two days before Doyle:

Like “cloud-capp’d towers,” “gorgeous palaces,” and perhaps someday even “the great globe itself,” many arrangements endure for some time but eventually dissolve.1 So too with certain law partnerships –– including firms that are retained, before they dissolve, to handle matters on an hourly basis.

Monday, March 12, 2018

In Lampe v. Queen of the Valley Medical Center, ___ Cal.App.5th ___ (Jan. 2, 2018; pub. ord. Jan. 23, 2018), the Court of Appeal (First Appellate District, Division Four) affirmed the trial court's order denying class certification of various wage and hour claims. The general thrust of the opinion is that the plaintiffs did not identify any overarching common policies that led to the asserted overtime and meal period violations. See, e.g., slip op. at 17.

Friday, March 09, 2018

In Lusnak v. Bank of America, N.A., ___ F.3d ___ (Mar. 2, 2018), a putative class action, the Ninth Circuit held that the National Bank Act did not preempt the plaintiff's UCL "unlawful" prong claim predicated on violations of Civil Code section 2954.8(a), as well as a provision of the federal Truth in Lending Act, both of which require payment of interest on escrow account funds.

Friday, March 02, 2018

On Wednesday, the Supreme Court granted review in Noel v. Thrifty Payless, no. S246490. In this case, the Court of Appeal (First Appellate District, Division Four) affirmed the trial court's order denying class certification of UCL, CLRA, and FAL claims. Noel v. Thrifty Payless, Inc., ___ Cal.App.5th ___ (2017). The opinion was handed down in December. It addressed several different issues, and it is unclear at this time which one(s) caught the Supreme Court's eye. The docket does not yet indicate the issues for review.

Friday, February 09, 2018

Yesterday, the Supreme Court reversed the Court of Appeal and held that an action by the Orange County District Attorney for civil penalties under the UCL was not preempted by Fed/OSHA (the federal Occupational Safety and Health Act (29 U.S.C. § 651 et seq.)). Solus Industrial Innovations, LLC v. Superior Court, ___ Cal.5th ___ (Feb. 8, 2018). The ruling allows public prosecutors to invoke the UCL to pursue civil penalties and injunctive relief against employers who fail to comply with workplace safety regulations. As reported in the San Francisco Chronicle, "State Supreme Court unanimous ruling allows big fines for unsafe workplaces."

This case has rather a long history. In 2014, I wrote this blog post on the Court of Appeal's original opinion, which, in the Supreme Court's words, "was based in part on a misapprehension concerning the date that unfair competition penalty provisions were enacted compared with the date the federal Secretary of Labor approved California’s occupational safety and health plan." Solus, slip op. at 4.

For those of us who follow the UCL and FAL, but who may not be especially interested in Fed/OSHA preemption issues, here are the passages of greatest interest:

The UCL concerns unfair competition, a term that “mean[s] and include[s] any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law].” (Bus. & Prof. Code, § 17200.) The purpose of the UCL “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) As we have said, “the act provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices.” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 371, italics added.) The FAL, for its part, makes actionable “untrue or misleading” statements made to “induce the public to enter into any obligation” to purchase goods and services. (Bus. & Prof. Code, § 17500.) Actions to enforce the UCL or FAL, which may be brought by government officials and by individuals who have suffered injury in fact (Bus. & Prof. Code, § 17203), address the “ ‘ “overarching legislative concern . . . to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.” [Citation.]’ ” (Zhang, supra, 57 Cal.4th at p. 371, italics added.) And the remedies are “cumulative . . . to the remedies or penalties available under all other laws of this state.” (Bus. & Prof. Code, § 17205.)

As noted above, under state law, these actions are not considered on their face to be a means of enforcing the underlying law. “ ‘By proscribing “any unlawful” business practice, “[the UCL] ‘borrows’ violations of other laws and treats them as unlawful practices” that the [UCL] makes independently actionable. [Citations.]’ ” (Rose v. Bank of America, N.A. (2013) 57 Cal.4th 390, 396.) We have explained that “by borrowing requirements from other statutes, the UCL does not serve as a mere enforcement mechanism. It provides its own distinct and limited equitable remedies for unlawful business practices, using other laws only to define what is ‘unlawful.’ [Citation.] The UCL reflects the Legislature’s intent to discourage business practices that confer unfair advantages in the marketplace to the detriment of both consumers and law-abiding competitors.” (Id. at p. 397; see People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 783 [Federal Aviation Administration Act does not on its face preempt UCL claims against motor carriers for misclassification of drivers]; In reTobacco Cases II (2007) 41 Cal.4th 1257, 1272 [a federal law governing cigarette sales to minors on its face did not expressly preempt the UCL, which “is a law of general application, and it is not based on concerns about smoking and health”]; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180; Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 560, 566 576.) Thus, the UCL and FAL are laws of general application.

We acknowledge that in some instances, a UCL claim may fall within a field of preemption. For example, in In re Tobacco Cases II, supra, 41 Cal.4th 1257, a UCL claim based on advertising activities alleged to violate Penal Code section 308 (prohibiting sale of tobacco products to minors and possession of such products by minors) was preempted as applied under the particular terms of a federal law governing cigarette labeling and advertising. (Id. at pp. 1272-1273.) Under the federal law involved, preemption turned on whether the particular UCL claim would impose a duty necessarily and inherently based on concerns about smoking and health. (Id. at p. 1273.) But here, the UCL and FAL claims are based on standards set forth in an approved state plan, and which therefore preempt any federal standards. Because these claims do not impose any duty on employers that is subject to federal preemption, they do not come within the principles articulated in Tobacco CasesII.